Lawfare Redux. By Scott Horton

As therecent attacks by Liz
Cheneyand her
organization demonstrate, “lawfare” as a subject is not going to disappear
anytime soon. Lawyers simply make too inviting targets–even when they’re
working pro bono on projects that they believe are advancing the Rule of Law. A
conference yesterday in New York showed just how the “lawfare” concept can be
reshaped to address new situations and different facts.

The resplendent
meeting room of the New York County Lawyers Association, filled with Beaux Arts
details and crystal chandeliers, was a curious site for the gathering organized
by the Conference of Presidents of Major American Jewish Organizations.
Generations of bar leaders stared down from the walls—many of them key players
in the 1949 Geneva Conventions, the Convention Against Torture, the Genocide
Convention, and other mainstays of the world’s human-rights legal
infrastructure–as speakers took to the podium to tell the audience that
international law wasn’t all it was cranked up to be.

There was a danger of
“taking international law too seriously,” as George Mason University’s Jeremy
Rabkin put it. “It’s not like the tax code,” he argued; the rules are unclear
and, more to the point, there is no court to enforce them. Former U.S.
ambassador to the United Nations John Bolton also spoke at the event, and is
indeed well known for his denigrating views about international law:

It is a big mistake for us to grant any
validity to international law even when it may seem in our short-term interest
to do so–because over the long term… those who think that international law
really means anything are those who want to constrict the United States.

Speaker Anne Herzberg
rose to assail “NGO Lawfare.” She catalogued a series of litigations brought by
human-rights organizations in courts around the world, in which policies or
actions of the Israeli government were challenged as unlawful, sometimes
successfully but more often not. These organizations are promoting a “radical
agenda” she argued—“anti-state,” “anti-democracy,” and “anti-American.” The
organizations attacked included the Israeli human rights group B’Tselem,
Amnesty International, and Human Rights Watch. They were funded by “foreign”
sources, Herzberg said, focusing specifically on funding from the European
Union. Herzberg and others particularly highlighted cases in Belgium and Spain
in which private litigants sought to pursue war-crimes charges against Israeli
government officials–efforts which gained newspaper headlines, but no success
in the courts. Indeed, Spain subsequently amended its universal jurisdiction
statute to eliminate such cases, requiring a specific nexus to Spain before the
jurisdiction could be exercised–an approach that has increasingly gained favor
in the European universal jurisdiction states.

Speakers
also took aim at former South African Justice Richard Goldstone and thereport he co-authoredwith
Christine Chinkin of the United Kingdom, Hina Jilani of Pakistan, and Col.
Desmond Travers of Ireland, addressing allegations of war crimes and crimes
against humanity committed by Israeli forces and Palestinian militants in the
Gaza conflict in 2009. Speakers repeatedly characterized the report as an
attack on Israel’s right to exist and ignored the fact that it reserved its
sharpest criticism for the conduct of Palestinian militants, specifically
including their practice of firing missiles at civilian population centers. The
specific factual conclusions of the report were not discussed, however. Typical
was Columbia Law Dean David Schizer, a conference co-chair, who concluded that
the Goldstone report “created standards of morality in war that leave a state
without the means of legitimate self-protection,” without offering any
explanation as to how he got there.

No
speaker was present to defend the Goldstone report, nor were any of the NGO
groups assailed at the gathering invited to respond. The event had the feel of
a pep rally, not an attempt to provide serious discussion of the issues it
identified. It seems to be in line with the Netanyahu Government’s strategy for
dealing with human-rights complaints, both from NGOs and from international
organizations like the United Nation, and it closely tracked a similar function
convenedtwo weeks earlier in Jerusalem. The principal question was
strategic: namely, how best to disarm critics of the Israeli Government’s
security policies.

The
concept of “lawfare” appears to be a one-size-fits-all cover for this strategy:
in the view of the conference organizers, any human-rights organization that
criticizes the government’s security policies is an adversary. To the extent
that it engages courts and the law, it is “lawfare.” The next step will
apparently be to try to dry up the funding that supports this sort of work, by
pressing donors directly and tarnishing the reputations of the NGOs that
receive their grants.Recent reports inside Israelsurrounding the New Israel Fund
show how this tactic can be pursued; Israeli commentators are busy attacking
NGOs who take money from the European Union as a“European lobby.”NGOs
that cooperated with the Goldstone inquiry and whose representatives testified
before it have been specially singled out.

The notion of
“lawfare” was previously used to attack lawyers in the United States who filed
habeas petitions on behalf of alleged terrorists in Guantánamo. These lawyers
were and continue to be subjected to McCarthyite character assassination as
terrorist sympathizers, even though about 80% of their clients have turned out
not to be terrorists after all. Lawfare turns out to be a flexible concept,
available for a wide array of situations in which a government finds itself at
odds with the law, fighting a rear-guard action in its own courts, or menaced
by the prospect of prosecutions overseas.

Efraim
Chalamish, the U.N. Representative of the Association of Jewish Lawyers,
pointed to Asia as an interesting case study for those looking at the lawfare
concept. Indeed, Pervez Musharraf, the one-time Pakistani dictator, zealously
embraced theidea of lawfare. In a speech on November 3, 2007, he declared
a state of emergency in Pakistan. In his televised address (turning to the
camera and switching from Urdu to English, moreover), he argued that his
government had been hamstrung in the conduct of the war against terror by
lawyers who were flooding the courts with writs challenging the government’s
detention of alleged terrorists. He declared a state of emergency and suspended
the country’s constitution. It soon appeared that Musharraf’s real adversaries
were more the lawyers than the terrorists. He placed the Supreme Court under
house arrest and proceeded to round up the leaders of the bar. In the struggle
between Musharraf and the bar, however, Musharraf lost. And with the lawfare
dictator gone from the scene, and the judges and lawyers back filing their
writs and petitions, the war against terror in Pakistan seems to have gained
its second wind. This Asian example provides a good demonstration of how the
lawfare concept is wielded and what role it really plays in the war against
terror.